Citation Nr: 0942938
Decision Date: 11/10/09 Archive Date: 11/17/09
DOCKET NO. 03-23 708 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas
THE ISSUE
Entitlement to service connection for a chronic acquired
psychiatric disability, to include post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart
ATTORNEY FOR THE BOARD
Robert E. O'Brien, Counsel
INTRODUCTION
The Veteran had active service from March 1967 to February
1969.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2001 rating decision of the VARO
in Waco, Texas, that denied entitlement to the benefits
sought.
This case was previously before the Board in January 2006 and
February 2008 at which time it was remanded for procedural
and substantive purposes. The case has been returned to the
Board for appellate review.
FINDINGS OF FACT
1. A chronic acquired psychiatric disability, to include
PTSD, due to a recognized stressor has not been established.
2. There is no competent evidence of a chronic acquired
psychiatric disability, to include PTSD, related to the
Veteran's active service.
CONCLUSION OF LAW
The criteria for service connection for a chronic acquired
psychiatric disability, to include PTSD, are not met.
38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp.
2009); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Duties to Notify and Assist
The Veterans Claim Assistance Act of 2000 (VCAA) (codified at
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126
(West 2002 & Supp. 2009)) includes enhanced duties to notify
and assist claimants in processing claims for VA benefits.
VA regulations implementing the VCAA are codified at
38 C.F.R. §§ 3.102, 3.156, 3.159, and 3.326(a) (2009).
Proper notice from VA must inform the claimant of any
information and medical or lay evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
seek to provide; and (3) that the claimant is expected to
provide. 38 C.F.R. 3.159(b)(1); Quartuccio v. Principi, 16
Vet. App. 183 (2002).
The Board also notes that the notice requirements of the VCAA
apply to all elements of a service connection claim. These
are: (1) Veteran status; (2) the existence of a disability;
(3) a connection between the Veteran's service and the
disability; (4) degree of disability; and (5) effective date
of the disability. See Dingess v. Nicholson, 19 Vet. App.
473 (2006).
The Board notes that there has been essential compliance with
the mandates of the VCAA throughout the course of the appeal.
Most recently, in January 2009, the Veteran was sent a
communication asking for names, addresses, and dates of VA
and non-VA health care professionals who had provided
treatment and/or evaluation for psychiatric purposes. He was
told how he could help VA and how VA could help him develop
his claim. He was also informed what the evidence had to
show to support his claim for service connection.
With regard to assistance, the Board finds that VA has
fulfilled its duties to assist the Veteran to the extent
possible. The record shows the Veteran has failed to report
for VA examinations scheduled for him in April 2008, May
2008, July 2008, and May 2009. Additionally, the Veteran was
scheduled for a hearing in October 2005, but, for whatever
reason, failed to appear. Further, the Board notes that a
notation of record reflects that in May 2009 the Veteran was
called to notify him of an appointment for examination. It
was stated that he was withdrawing his claim because he was
"feeling very good and he doesn't need to see a doctor and he
wants to cancel his claim too, because he said that he is
feeling much better from his nerves." However, this
indication of a desire to withdraw the claim has not been
reduced to writing as required by 38 C.F.R. § 20.204 (2009).
The Board notes that the duty to assist is not always a one
way street. If a Veteran wants help, he cannot passively
wait for it in those circumstances where he may or should
have information that is essential in obtaining supportive
information. See Wood v. Derwinski, 1 Vet. App. 190, 193
(1991). The Board finds therefore that the duty to assist is
satisfied in this case.
Pertinent Legal Criteria
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303.
Service connection may also be granted for disability
diagnosed after discharge when all of the evidence, including
that pertinent to service, establishes that the disease
process was incurred in service. 38 C.F.R. § 3.303(d).
For the showing of chronic disease in service, there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time. 38 C.F.R. § 3.303(d). If
chronicity in service is not established, then a showing of
continuity of symptomatology after discharge is required to
support the claim.
The U.S. Court of Appeals for Veterans Claims (Court) has
held that for service connection to be awarded, there must
be: (1) Medical evidence of a current disability; (2)
medical evidence, or in certain circumstances, lay evidence
of inservice incurrence or aggravation of a disease or
injury; and (3) medical evidence of a nexus between the
claimed inservice disease or injury and the present disease
or injury. Coburn v. Nicholson, 19 Vet. App. 427 (2006);
Disabled American Veterans v. Secretary of Veterans Affairs,
419 F.3d 1317 (Fed. Cir. 2005); Shedden v. Principi, 381 F.3d
1163, 1166 (Fed. Cir. 2004). If the Veteran fails to
demonstrate any one element, denial of service connection
will result.
In order for a claim for service connection for PTSD to be
successful, there must be: (1) Medical evidence diagnosing
the condition in accordance with the provisions of 38 C.F.R.
§ 4.125; (2) credible supporting evidence that the claimed
inservice stressor actually occurred; and (3) a link,
established by medical evidence, between current symptoms and
the claimed inservice stressor or stressors. 38 C.F.R.
§ 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997).
If a claimed stressor is related to combat, service
department evidence that the Veteran engaged in combat or
that the Veteran was awarded the Purple Heart Medal, Combat
Infantryman Badge, or similar combat citation will be
accepted, in the absence of evidence to the contrary, as
conclusive evidence of a claimed inservice stressor.
"Credible supporting evidence" of a noncombat stressor may be
obtained from service records or other sources. See Moreau
v. Brown, 9 Vet. App. 389 (1996). However, the regulatory
requirement for "credible supporting evidence" means that
"the appellant's testimony, by itself, cannot, as a matter of
law, establish the occurrence of a noncombat stressor." See
Dizoglio v. Brown, 9 Vet. App. 163 (1996).
Evidence of record shows the Veteran served in Vietnam from
April 30, 1968, to February 2, 1969. There is no indication
that the Veteran had a combat assignment while in Vietnam.
However, the U.S. Joint Services Records Research Center
(JSRRC) (formerly the U.S. Armed Services Center for Unit
Records Research) has verified that while he was stationed at
Camp Evans in Vietnam, the facility sustained aerial weapons
fire and small weapons fire. In June 2007, the facility
responded that review of the morning reports by the 11th
Aviation Company (General Support) from the period from
November 1968 to January 1969 verified that the Veteran was
assigned to that unit. Furthermore, the daily staff journals
submitted by the 1st Air Cavalry Division verified that the
base camp location was Camp Evans. The JSRRC was able to
confirm combat activity took place at Camp Evans on May 1,
1968, May 6, 1968, and May 7, 1968, and this included aerial
weapons fire and small arms fire. No casualties were
reported.
The medical evidence of record includes a report of a VA
outpatient visit on one occasion in June 2001. At that time
the Veteran stated he had been depressed since Vietnam. He
claimed while in Vietnam he served in combat. He stated that
he saw four soldiers killed his first day and "several
episodes since." He reported some nightmares, intrusive
thoughts, and startle responses relating to his Vietnam
experiences. He reported no prior psychiatric care. He was
voluntarily attending Alcoholics Anonymous. Axis I diagnoses
were "alcohol dependence, no remission; depression, NOS;
PTSD."
Received in October 2002 was a communication from the Veteran
in which he indicated that while in Vietnam stationed at Camp
Evans, he was subject to incoming artillery fire. He stated
that an ammunitions dump was hit and there were casualties
therefrom. He helped pick up the dead and the wounded. He
also stated that a friend named E.V. from Phoenix was killed.
He added that he helped to pick up body parts after a
helicopter crash killed all those aboard. He also recalled
memories of civilians eating dogs to keep from starving.
The Veteran was accorded an evaluation for PTSD by VA in May
2003. He stated he had never been hospitalized for
psychiatric purposes. Notation was made that at the time of
separation examination, the Veteran's psychiatric status was
recorded as normal. However, the Veteran claimed that
several months after service he began to have dreams of his
experiences in Vietnam. He made reference to nightmares of
combat experiences in Vietnam about twice a week. He
reported various symptoms associated with PTSD, but the
examiner noted that "interestingly, the patient has not
sought any mental health treatment for any of these symptoms
or problems with the exception of one mental health contact
about two years ago in social work at the El Paso VA Health
Care Center." The Veteran stated that his primary job in
Vietnam was to support helicopters. He claimed that he saw a
lot of his buddies killed while in Vietnam. The Veteran was
accorded psychological testing and the examiner stated the
results were of "borderline validity due to over reporting."
Following examination, the Veteran was given an Axis I
diagnosis of PTSD. He was also given a diagnosis of alcohol
dependence.
As noted above, the Veteran failed to report for VA
examinations scheduled for him in April 2008, May 2008, July
2008, and May 2009. No reasoning was given for his failure
to report for any of the aforementioned examinations.
Accordingly, the Board is forced to rely on the evidence that
is of record and the Board concludes from that that there is
no verifiable stressor to support the claim. The stressors
identified by the Veteran are either anecdotal in nature or
shown to lack credibility. For example, the Veteran has
given the name of an individual who he states was killed in
action in Vietnam. However, that individual's name is not
listed in the Vietnam Veterans' Memorial Directory of Names.
The other information the Veteran has provided is extremely
vague in nature.
Additionally, the records show the Veteran has repeatedly
failed to report for examinations on several different
occasions. The law requires verification of reported
stressors and the claim as it currently stands lacks a
credible, verified stressor. Accordingly, further inquiry as
to a nexus between claimed PTSD and any reported stressor is
moot. The Board notes that there is no showing from the
evidence of record of any psychiatric disability other than
PTSD that is causally related to the Veteran's active service
in any way.
The Board notes that while the Veteran is entitled to the
benefit of the doubt where the evidence is in approximate
balance, the benefit of the doctrine is not for application
where, as here, the preponderance of the evidence is against
the claim for service connection. See Gilbert v. Derwinski,
1 Vet. App. 49 (1990). The Board notes that in the event the
Veteran agrees to provide more specific information, and
appear for a psychiatric examination, he may always reopen
his claim.
ORDER
The appeal is denied.
____________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs